ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-05-0761-SR

DATE: 20130405

BETWEEN:

MOUNTAIN VIEW FARMS LTD.

Plaintiff

– and –

GEORGE McQUEEN, also known as GEORGE D. McQUEEN also known as GEORGE DONALD McQUEEN

Defendant

M.A. Cummings, for the Plaintiff

V. L. Vandergust, for the Defendant

HEARD: By written submissions

COSTS ENDORSEMENT

Stong J.

[1] Notwithstanding the equitable resolution to any prejudice caused to the Plaintiff as a result of the delay by the Defendants in bringing this motion before the court, albeit for reasons induced by negligence or litigation strategy, is to award costs, the Court cannot overlook the fact that the Defendants had made a timely offer to settle which was more favourable to Mountain View than this Court’s decision.

[2] Mountain View rejected that offer on what the Defendants considered to be a basis of “anger that another contractor was hired to do the farm work”.

[3] Despite the inexplicable delay in bringing this motion, once the motion was served the conduct of McQueen was responsible and prudent. The success of McQueen in reducing the interest from 24% to 5% was substantial and deserving of costs.

[4] Mountain View did suffer prejudiced by actions of the Defendants prior to the initiation of this application and so this court will recognize that prejudice by reducing the overall merited cost award to the Defendants.

[5] The Defendants’ costs are recognized as being $21, 351.01, inclusive of HST and disbursements as set out on page six of the March 22, 2013 Vandergust letter of submissions as to costs. Those costs are hereby reduced by an amount compensable to Mountain View which is calculated to include only preparation of reply material and correspondence which given the size of the material and affidavits two weeks before the Offer to Settle and is determined to be $3,000.00.

[6] Costs are therefore awarded to and payable forthwith to the Defendants in the amount of $18, 351.01.

STONG J.

Released: April 5, 2013